Supreme Court Grants Certiorari to Resolve Whether a Motion to Reopen Tolls Voluntary Departure

In Dada v. Gonzales, 207 Fed. Appx. 425, No. 06-60180 (5th Cir. Nov. 28, 2006) (per curiam), Petitioner filed a motion to reopen for adjustment of status two days prior to the expiration of his voluntary departure period. Petitioner also asserted that he was "withdraw[ing] his request for voluntary departure and [was] instead accept[ing] an order of deportation." On February 8, 2006, the BIA denied Petitioner's  motion, finding him  statutorily ineligible for adjustment of  status as a result of his failure  to voluntarily depart within the time period granted. INA  § 240B(b).   In an unpublished opinion, the Fifth Circuit rejected Petitioner's  argument that the filing of a motion to reopen automatically tolls the voluntary departure period, found the BIA's interpretation  of the relevant statutes "reasonable," and denied the petition for review. The Supreme Court denied certiorari on the issue as to whether a person can avoid the consequences  of failing to comply with a voluntary departure order by seeking to withdraw the request for relief, but granted  certiorari on  the tolling  issue.

The Court's decision in Dada will resolve a circuit split on the issue. Four circuits have found that the filling of a motion automatically tolls the voluntary departure period. See Kanivets v. Gonzales, 424 F.3d 330 (3rd Cir. 2005); Sidikhouya v. Gonzlaes, 407 F.3d 950 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325 (11th Cir. 2006).  Two court, including the Fifth Circuit in a separate published opinion, have concluded otherwise. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert. pending, No. 06-1252 (filed Mar. 22, 2007); Banda-Ortiz v. Gonzlales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127 S.Ct. 1874 (2007).